SUPREME COURT.

#### *Commonwealth of Pennsylvan*ia v. *Nicholas Kosloff.*

*Tilghman,*Chief Justice.

Motion to Quash.

A consul gentected by the law of nations on indictment for a rape.

Jurisdiction ° sta e courts-

The grand inquest for the city and county of Philadelphja. having preferred a bill of indictment for a rape against Nicholas Kosloff, consul-general of his Imperial Majesty the Emperor of Russia, a mqtion has been made to quash the indictment for want of -jurisdiction in this court. Two causes are assigned for our want of juris¿hC(jon. 1st. That the privilege, of immunity from crirainal prosecutions is conferred on consuls by the law of nations. 2d. That by the constitution and laws of ,the United States, exclusive jurisdiction in all cases affecting consuls, is vested in the courts of the United States.

1st. It is granted that, by the modern law of nations, ambassadors and other public ministers are, in' general, exempt from criminal prosecutions. Perhaps there are some offences, such as an attempt on the life of the ■sovereign with whom they reside, which would warrant their punishment. But in every thing short of an extreme case, it is more conducive to the peace, and more agreeable to the usage of- nations, to send them to their own sovereign, to receive from him the punishment they -deserve. It has not been contended that a consul is a public minister; but it is said that a consul" general, such as Mr. Kosloff, is prohibited from exercising trade and commerce, and entrusted with important concerns of his sovereign, so nearly resembles a public minister, that he is entitled to some of his prerogatives, and, in particular, to exemption from criminal prosecution. In *623considering this case, we must exclude from our view the august personage, to whom allusion was made in'the argument. Concerning his high character, and the intimacy of the relations' to be preserved with him, there is but one voice, one wish. These considerations would have their deserved weight in their proper place; but before us, there • is only a naked question of right, in which all nations are equally concerned, for we cannot but see that what is granted as the right of one, must be conceded as the right of all. The law of nations is to be sought for in the usages of nations; in the opinions of approvedr authors and in treaties, and in the decisions of judges, with regard to the privileges of consuls, there is some difference of opinion among respectable authors. Wicquefort, .Bynke'rshoeck, and Marten, allow to a consul no privilege against suits civil or criminal; and the reason they assign is, that consuls in no manner represent - the person of their sovereign, but are sent for the purpose of assisting his subjects, particularly in matters of commerce, and sometimes of deciding disputes, which may arise between them, by permission of the government in whose diminions they reside. (See Wicquefort i’Ambasdeur, book 1. p. 65., Bynkershoeck Deforolegatorum, chap. 10. p. 110. Barbeyrac’s translation into French, Marten’s Summary Law of Nations, book 4. chap. 3. sec. 8.) Opposed to them is Yattel, who, although he does not assert that a consul is entitled to the privileges of a public minister, in general, is yet of -opinión that, from the nature of his functions, “ he should be independent of the ordinary criminal justice of the place where he resides, so as not to be molested or imprisoned, unless he himself violates the law of nations by some enormous crime.” Vattel, vol. 2. chap. 2. sec. 34. I am not quite sure what is meant by violating the law of nations in this passage. Crimes against the law of nations are sometimes understood to be crime's which all nations agree to punish—such are murder and rape, among all civilized. nations; and if that be the meaning of Yattel, his authority would not exempt the consul from the pres,ent prosecution. But what is of more weight than the judgment of authors, however respectable, is the opinion and the practice of our own government, and that of the foreign nations with whom we *624have had intercourse. We have had treaties with France, Spain, Great Britain, Holland, Prussia, and Sweden, in all of which the subject of consuls has been introduced, and in not one of which have consuls been protected from suits civil or criminal. I say nothing of our treaties with the Barbary powers, because there are special reasons why all nations, who send consuls to them, take care to provide expressly for their personal security. In the treaty with Great Britain, made 1794, consuls are expressly declared to be subject to punishment by law of the cquntry in which they reside. By the consular convention with France in 1788, there is to be full and perfect immunity concerning the chancery and its papers, but the house of the consul is to be no asylum for persons or effects ; and in our treaties the most that is stipulated in favour of consuls is, that they shall respectively enjoy the same prerogatives and powers that are granted to those of the most favoured nations. Those treaties afford a strong proof of the usages of nations; for it cannot be supposed, that they should have omitted to secure consuls from criminal prosecutions, if. it had been thought desirable or usual, to afford them that protection. But there is not, wanting more direct proof of the opinion of our own government: In the 11 act for the punishment of certain crimes against the United States,” passed April 20, 1790, penalties are inflicted on persons who sue out process, from any court, against an ambassador or other public minister ; but the act is silent as to consuls. And, what is directly to the point, the 9th sec. of the *“*act to establish the judicial courts of the United States,” passed September 24, 1780, vests the district courts with jurisdiction of of-fences committed by consuls, in which a punishment did not exceed 100 dollars, &c. &c. Neither are we left, on this important subject, without the light of judicial decision. Mr. Ravara, consul from Genoa, was indicted and convicted of a misdemeanor in the circuit court of the United States. He was defended by able counsel, who contended for his privilege,. on the authority of Yattel. But the court decided against him ; and 'it is worthy of remark, that C. J. Jay presided, who had been long employed in a function of a high grade, at the court of Madrid, and was one of the ministers of the United States, who' negotiated at Paris, the treaty which *625established our independence. No person certainly had better opportunities of knowing the usage of nations, or a better capacity of improving those opportunities. From all these considerations, I cannot hesitate in the opinion, that there is nothing in the law of nations which protects the consul general of Russia from this indictment.

2d. A more difficult question remains to be considered : Is the jurisdiction of this court taken away by the constitution and laws of the United States *l*Before I go into an examination of the constitution and laws, it may not be improper to say a word or two respecting the subject out of which this question arises. An agent of a foreign government, accused of a crime committed in the state of Pennsylvania, claims not an exemption from trial, but the right of being tried by the courts of the United States. His public relations are not with the state of Pennsylvania, but with the government of the United States j and if the emperor of Russia should suppose that he had cause to complain of our treatment of his officer, he must address himself, not to the governor of Pennsylvania, but the president of tho United States, But even where there was no causo of complaint, cases may be easily supposed in which the president might think it more conducive to the peace oí tho nation, to send a foreign agent out of the country, to be punished by his own sovereign, than to inflict punishment on him by our own laws. These considerations are so manifest, that when the people of the United States were about to form a federal government, through which alone they were to maintain an intercourse with foreign nations, it would have seemed a want of common prudence not to commit to that government the management of all affairs respecting the public agents of those nations. Let us now advert to the instrument of our federal union, and we shall soon perceive that the statesmen who framed it were perfectly aware of the importance of placing all foreign public agents, consuls included, under the complete superintendence of the federal government. It was through the judicial power that those persons could principally be affected. Accordingly we find it provided by the 2d sec. of the 3d art. of the constitution, that the judicial power shall extend “to all cases affecting ambassa*626dors, other public ministers and consuls:” words more comprehensive cannot be devised. They include suits of every kind, civil and criminal. This is not denied by the attorney general of Pennsylvania ; nor, as I understand, is it denied that, by virtue of this provision, congress has a right to declare by law, that in no case, civil or criminal, should a state court have jurisdiction over a consul. But it is contended, that until congress does by law declare so, the state courts have concurrent jurisdiction with the courts of the United States: or, rather, that in the case before us, the state courts alone have jurisdiction; because, congress having passed no law defining the crime, or the punishment of rape, the courts cannot take cognizance of the offence. The constitution in the 1st sec. of the 3d article, declares in what courts the judicial power shall be vested, viz. in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. In the second section, it enumerates the different cases to which the judicial.power shall extend, and then goes on to direct the distribution of that power among the different courts, “ in all cases affecting ambassadors, other public ministers and consuls, and those in which a state shall be a party, the supreme court shall have original jurisdiction. In all the other cases before mentioned, the supreme court shall have appellate jurisdiction, both as to law and facts, with such exceptions, and under such restrictions as the congress shall make.” Thus the judicial power, extending to all cases affecting consuls, being vested in the supreme court, it follows, that as soon as the supreme court was organized by law, it became im-' mediately vested with original jurisdiction in every case in which a consul might be affected. But was this an exclusive jurisdiction? The opinion of the supreme court, in Marbury *v.*Madison, 1 Cranch, 137. goes far towards establishing the principle of exclusive jurisdiction. ■ The point decided in that case was, that where the constitution had not -vested the supreme court with appellate jurisdiction, it was not in the power of congress to give appellate jurisdiction. This will appear from the following extract from that opinion. “ If congress remains at liberty to give this court appellate jurisdiction where the constitution has declared their jurisdiction *627shall be original; and original jurisdiction where ihe constitution has declared it shall be appellate, the distribution of jurisdiction made in the constitution, is form without substance. Affirmative words are often, in their operation, negative of other objects than those affirmed, and, in this case, a negative or exclusive sense, must be given to them, or they have no operation at all. If the solicitude of the convention with respect to our peace with foreign powers, induced a provision that the supreme court should take original jurisdiction in cases which might be supposed to affect them ; yet the clause would have proceeded no farther than to provide for such cases, if no farther restriction on the power of congress had been intended. That they should have appellate jurisdiction in all other cases, with such exceptions as congress might make, is no restriction, unless the words be deemed exclusive of original jurisdiction.”

Now, taking this to be the construction of the constitution, all those parts of the “act to establish the judicial courts of the United States,” which vest jurisdiction in cases affecting consuls, in the district or circuit courts, would-be unconstitutional and void; and if it was intended by the constitution that no inferior court of the United States should have jurisdiction, it cannot be supposed that the state court was to have it, because there are much stronger reasons for denying it to the state courts, than to the inferior courts of the United States. It will be perceived that the principle shakes the decision, in the case of Bavara, who was- convicted in the circuit court, though not that part of the decision which respects the privileges of a consul. But if the two cases cannot be reconciled, the circuit court must give way. Supposing, however, for argument sake, that the constitution does not vest the supreme court with exclusive jurisdiction, let us see whether congress has not excluded the state courts by the judiciary act, passed 24th September, 1789. By the 9th section, the district courts arc vested, exclusively of the courts of the several states, with cognizance of “all crimes and offences that shall be cognizable under the authority of the United States, committed within their respective districts, where no other punishment than whipping, not exceeding thirty stripes, a fine not exceeding 100 dollars, or a term of *628imprisonment not exceeding six months, is to be inflicted.” Consuls are embraced in this jurisdiction, as plainly appears by considering the whole section, and as was declared by the court in Manhardt *v.*Soderstrom (1 Bin. 138.) Then comes the 11th section, by which the circuit courts are vested with exclusive cognizance’of “ all crimes and offences cognizable under the authority of the United States, except where the said act otherwise provides, or the laws of the United States shall- otherwise direct, concurrent jurisdiction with the district courts, of the crimes and offences cognizable therein.” Does not this exclude the state courts from jurisdiction in the case of consuls *7*

The only argument attempted, or that can he devised, in support -of the negative, is, that no offence is cognizable in any court of the United States, until congress has, declared it to "be an offence, and prescribed the punishment. This is the only consideration which ever had the least weight in my mind; but upon mature refle.Cr tion, I am unable to deny that the courts of the United States can take cpgnizance, when I find it written in. the. constitution, that the supreme court shall have jurisdiction in all cases affecting a consul. Is he not affected in criminal cases much more than, in civil *7-*How then can I say that the supreme' court has no jurisdiction *7.*B.ut, how, or by what law is he to be punished, in case of conviction *7*Shall he be punished by the law of Pennsylvania, where the offence was,committed, in as much as there is no other express law which reaches this case, and, it is, on account of the person, only, that jurisdiction is given to. the coms of the United States *7*Does, the 3.4-th section, of the judiciary act apply to the punishment of offences,, by. which it is; enacted, “ that the laws of the several-states, except where the constitution, treaties, or. statutes, of the United States shall otherwise require or provide,, shall be regarded as rules of decision in, trials at- common, la,w in the courts of the United States, in cases wh.ere they apply *7”*May a person convicted in a court of the United States, of a crime of the highest grade, concerning which,congress has made no provision, be punished according to, the opinion of Judge Story, in the United States *v.*Coolidge, by fine and imprisonment, on the principles of common law *7*1 Gallison’s Rep. 488. Or is the const!*629tution to be so construed as to exclude the jurisdiction of all inferior courts, and yet suffer the authority of the supreme court to lie dormant, until called into action by a law which shall form a criminal code on the subject of consuls *1*These are the questions which may embarrass those who have to answer them ,- but are, not necessary to be answered here. No embarrassment, however, could equal that into which this court would be thrown, should it determine that no court of the United States has jurisdiction in a case which affects a consul in every thing short of life, when the constitution declares that the supreme court shall have jurisdiction in all cases concerning him. Upon full consideration, I am of opinion that the indictment should be quashed, because this court has no jurisdiction.

Justice Brackenridge concurred on the second ground; but declined giving any opinion on the first, as he did not deem it necessary.